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signed the constitution (a) on the 29th of November, 1802. It was of necessity submitted to Congress for approval; but was not submitted to the people for ratification. It bears some marks of the haste with which it was framed; but still more of the spirit of the times. Public sentiment was then inclining against what is called a strong government. And this constitution, accordingly, aimed to govern as little through the medium of public agents, and as much through the immediate action of the people, in their primary capacity, as the nature of a representative government will admit. It may, in fact, be regarded as a fair experiment to ascertain the minimum of power necessary to be delegated to the people by their representatives.

It will thus be seen, that the power to admit includes the power to prescribe the terms of admission; and this is equivalent to the power to refuse admission. When Missouri applied for admission, a large party in Congress were in favor of requiring slavery to be prohibited, as one of the conditions of admission; and there would seem to be no question of the power of Congress so to do; but in this instance, there was a majority the other way, and slavery was not prohibited. Again, Michigan was required to assent to the boundary line claimed by Ohio, as one of the conditions of her admission. From all which it appears, that the people of a territory, seeking admission into the Union, are considered as asking a favor, rather than demanding a right. They indeed frame their own constitution, but it must meet the approbation of Congress. In a word, they are placed very much at the discretion of Congress. (b)

(a) The convention assembled at Chillicothe on the first of November, 1802. A large majority of the members belonged to the party friendly to the new administration of Mr. Jefferson. See preliminary sketch prefixed to 1 Chase's Ohio Statutes, 30-35. But this constitution gave way to a new one, bearing date the 10th of March, 1851, which, after being ratified by the people, took effect on the 1st of September following.

(b) In several instances, the people of a territory have formed a State constitution, and have been admitted under it into the Union without a previous enabling act of Congress. The constitution under which California was admitted into the Union, in 1850, was framed by a convention, the delegates to which were chosen under a proclamation of Gen. Riley, the military governor of the territory, acting under instructions from the President. Among other instances of irregularity in the preliminary proceedings, see the cases of Tennessee and Michigan, Benton's Abridgment of the Debates of Congress, vol. i. p. 754; vol. xii. p. 748-750. The Act of Congress of February 22, 1872, declares that no State shall be admitted without the necessary population to entitle it to one representative in Congress.

LECTURE IV.

DIVISIONS AND DEFINITIONS. (a)

§ 16. Municipal Law - Rights. In the two preceding lectures, we have taken a general survey of the organization of American society; and we have seen that all the powers which the people by their constitutions have conferred upon their respective governments, whether state or federal, have relation, directly or indirectly, to making, interpreting, and executing laws. Our future inquiries, therefore, will be directed to the following points: How are these laws made? How are they interpreted? How are they executed? What laws may, and what may not, be made? What do the existing laws in fact provide? When these questions shall have been answered, my task will be accomplished. But, before proceeding to answer them directly, there are various preliminary explanations, definitions, and divisions, by attending to which now we shall greatly facilitate the proposed inquiries. To that object, therefore, this lecture will be devoted. According to Blackstone, municipal law is a rule of civil conduct, prescribed by the supreme power in a State, commanding what is right and prohibiting what is wrong." This definition is imperfect, because it does not clearly distinguish between moral right and wrong, and legal or civil right and wrong. Every law either commands something to be done, or regulates the manner of doing it, or forbids it. If it so happen that religion or morality forbids the same thing which the law forbids, we call that thing malum in se, or wrong in itself; otherwise, malum prohibitum, or wrong because prohibited. This very distinction shows that municipal law and moral law do not necessarily command or forbid the same things. In fact, many things are morally right which the law does not command; and many things are morally wrong which the law does not forbid. We have already seen that human government has nothing to do with moral conduct, apart from civil. It must, indeed, generally happen that these will correspond; and seldom that they will conflict with each other. But the former belongs to a treatise on ethics, and the latter only to a treatise on law. We say, then, in this view, that a thing is right or wrong, in a legal sense, because the law commands or forbids it; and it is to rights and wrongs, as thus explained, that our inquiries will be directed. But these again are correlative terms. A wrong always results from the violation of a right; so that by describing the one, you indicate the nature of its opposite. Again, right and obligation are reciprocal. The ex

(a) There are several works expressly devoted to definitions. See the Law Dictionaries of Bouvier, Burrill, Holt, Jacob, and Tomlins; Taylor's Law Glossary; Termes de la Ley; Kelham's Dictionary of Norman French. In general, the best definitions will be found in Blackstone. Of the Dictionaries, I prefer Bouvier.

istence of a right in any person, imposes on all others an obligation to respect it. This obligation the law will always enforce, if the proper steps be taken; for it is a fundamental maxim, that for every right which the law recognizes, it provides a remedy in case of violation. A treatise, therefore, upon municipal law, is, for the most part, a treatise upon rights and remedies, or upon wrongs and remedies, as one may choose to express it; and this suggests a remark upon Blackstone's primary division of legal subjects, into rights of persons, rights of things, private wrongs, and public wrongs. These expressions do not on their face indicate that remedies are to enter into the discussion. Moreover the phrase, rights of things, jura rerum, by itself, conveys no definite idea; since all rights are the rights of persons; that is, they belong to persons though they may have relation to other things. There is a distinction sometimes made in the books, between natural rights, or those which would have belonged to men in a state of nature; and social rights, or those which are created by the social compact. But this distinction is only a matter of speculative interest; since under the compact, both are equally legal rights. There is, however, a division of rights, which, as citizens of a free and constitutional government, we should always bear in mind; I mean those which are defined by the constitution, and those which are not. The former may be designated as fundamental; since they are made the foundation of our social relations, and cannot be altered by delegated power. The people alone in their sovereign capacity can change them by changing the constitution. While the latter may be called discretionary, since they depend upon legislative action. The idea of a formal declaration or bill of rights, (a) is not original in this country. England furnished the first example, in the celebrated Magna Charta, promulgated in 1225; since which epoch, the fundamental rights of her people have been several times solemnly declared; although they are still without a written constitution, as we understand the terms. In this country the determination to have fundamental rights indubitably ascertained, so as to be beyond the possibility of cavil, has been at all times remarkable. We find it in the proceedings of the earliest colonial assemblies and congresses. In the Declaration of Independence, it appears in the most imposing form. The federal constitution was strongly objected to, because it did not contain a full and formal bill of rights; and though it did in fact contain many provisions of that nature, the first ten amendments were added to obviate this objection. In all the State constitutions, a like precaution has been taken. Our fundamental rights are thus imperatively declared, and placed beyond the usual fluctuations of opinion. What they are, will be explained in the sequel. It is sufficient here to say, that they operate as so many limitations of delegated power; and that they are as efficient for this purpose, as express prohibitions.

(1) See 1 Black. Com. 127; 2 Kent, Com. lec. 24; 2 Story, Const. ch. xliv.

§ 17. Written Law. (a) Such being the general nature of municipal law, its various kinds form the next subject of inquiry. The most general division of law is into written and unwritten law. But these are again subdivided, in this country, as follows: Written law consists of constitutions, treaties, and statutes. Unwritten law consists of common law and equity. The general distinction between written and unwritten law is, that the former is regularly enacted and promulgated by the proper authority; while the latter is made up of judicial decisions without any formal enactment. I shall explain each of the above subdivisions, beginning with those of written law.

Constitutions. By a constitution we understand a solemn written declaration of the sovereign will of the people, defining the form and powers of government. This idea has been already sufficiently developed. But this definition would not apply to what is called the British constitution; for that is a mere collection of immemorial customs and traditions, and properly belongs to the division of unwritten law. The history of the formation of the federal constitution, and also of that of Ohio, has been briefly traced; and their provisions will be examined in detail hereafter. Suffice it here to say, that the federal constitution unites the people of all the States into one nation for all national purposes, in the same manner as a State constitution unites the people of one State for municipal purposes; the one being a declaration of the sovereign will of all the people of the United States; and the other, of that portion of the same people constituting one State.

Treaties. (b) The making of treaties has not usually been considered as an act of legislative power. In England, the treatymaking power belongs to the king alone. And by the common definition, a treaty is regarded merely as a solemn written compact, entered into between independent nations, to regulate their intercourse. Were this the American definition, our Indian treaties would form a partial exception, since we do not recognize the Indian tribes as wholly independent. But there is a provision in the federal constitution, declaring treaties duly made to be a part of "the supreme law of the land." (e) Thus, instead of being merely compacts, binding the nation at large, treaties are here made binding, like other laws, upon every individual. In this view, therefore, treaties may be strictly called the written law of nations. The power to make treaties is vested in the president with the concurrence of

(a) See 1 Black. Com. 85; 1 Kent, Com. lec. 20.

(b) It was first proposed in the convention that the senate should have the treatymaking power, and that no treaty should be binding until ratified by law. Mad. Pap. 1412-15. When the power was conferred on the president, it was proposed that it should be with the consent of both houses; but the considerations of secrecy and, despatch prevailed to vest the power in the hands of the president, with the advice of two-thirds of the senate. Id. 1518-20. See also, Black. Com. 257; 2 Story, Const. § 1499-1518.

(c) A treaty is considered binding, when ratified, as between the respective governments from the date of its signature. But as regards the right of private parties which have vested between the signature and the ratification, the latter cannot be considered retroactive, and the treaty will take effect only from the exchange of ratifications Haver v. Yaker, 9 Wall. 32.

two-thirds of the senate. The first object is to secure secrecy and despatch; and to this end treaties are framed by the president alone, through his appropriate ministers; but in order to guard this high power from abuse, the assent of two-thirds of the senate is made necessary to their consummation. It has been made a question, whether the house of representatives have not an indirect negative power, by refusing to pass such laws as treaties may require; but in the discussions which have taken place in Congress, the prevailing opinion seems to be, that by the ratification of a treaty the national faith is solemnly pledged to the enactment of every law necessary for giving it effect; and, therefore, that the house of representatives cannot properly refuse so to do. The making of treaties being one of the highest attributes of national sovereignty, the States are expressly prohibited from entering into "any treaty, alliance, or confederation;" because they are not, in this view, recognized as nations. But, with the assent of Congress, a State may enter into "an agreement or compact with another State or with a foreign power." This permission is understood to include nothing more than negotiations respecting matters of mere local concern, such as questions of boundary, and the like; and even these are invalid without the consent of Congress. The design is to take it out of the power of a single State to disturb, by its own act, the harmony of the Union. (a)

Statutes. (b) By a statute, we understand a law duly enacted by the legislature. The mode of enactment will be considered hereafter. Statutes are either public or private. The former embrace the whole community; the latter only certain individuals or associations. The only important distinction is, that courts take notice of the former without special reference, but not of the latter. It is usual, however, to do away with this distinction, by inserting in private statutes a special clause declaring that they shall be treated as public. The title or preamble of a statute properly forms no part of the law; but in case of doubt, may be referred to for explanation. Penal statutes are construed strictly in favor of him against whom they operate. Others liberally, according to the spirit and general intent. There are many rules of interpretation, but they are of little use. Common sense is the best guide; and it is to be regretted that the letter should ever be allowed to prevail against the spirit. In case of repugnancy between two statutes, the latest prevails, for it repeals the former. The general rule is, that when a statute which repealed another is itself repealed, the

(a) The Indian and foreign treaties compose the seventh and eighth volumes of the United States Statutes at Large, published by Little, Brown, & Co. In Ohio all public officers are furnished with copies of the laws of each session of the legislature, and other copies placed in the hands of the clerk in each county for sale. Provision is also made for furnishing advance sheets during the session, in forms of sixteen pages each, ten of which are allowed each member of the General Assembly, and the balance sent to the various county auditors for distribution. Act of April 5, 1856; S. & C. 824, as amended May 3, 1861, and April 18, 1870.

(b) See 1 Black. Com. 85; 1 Kent, Com. lec. 20; Smith's Commentaries; Dwarris on Statutes; Sedgwick on Statutory and Constitutional Law.

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